The study begins by noting
that flight attendants are exposed to circadian rhythm disruption, increased
gravitational forces, ozone, noise and vibration, decompression, fatigue,
chemicals (including hydraulic fluid, jet fuel, and pesticides), cigarette
smoke, viral infections, and cosmic and other ionizing radiation exceeding
the National Council on Radiation Protection and Measurements' recommended
exposure limits for pregnant women flying at high altitudes.

Seeking to determine the
frequency of adverse reproductive outcomes, the researchers conducted a
random sample of 9,392 of the more than 30,000 persons listed as active
members of the Association of Flight Attendants as of January 1, 1990,
and surveyed flight attendants who were pregnant at any time during the
period beginning on January 1, 1990 and ending on December 31, 1991. More
than 5,600 flight attendants surveyed (86% of whom were female) responded
to a preliminary eligibility questionnaire, and 718 female flight attendants
answering the questionnaire indicated that they had been pregnant during
the January 1990-December 1991 study period.

The study found that the
percentage of spontaneous abortions (defined as a fetal loss occurring
at up to 28 weeks of gestation) for flight attendants not working outside
the home during the first pregnancy of the study period was 8%. Fifteen
percent of flight attendants working outside the home during the first
pregnancy of the period under study experienced a spontaneous abortion,
a figure comparable to the proportion of spontaneous abortions reported
for the general population of the United States and for other working women
(specifically female attorneys, veterinarians, and resident physicians).
The study thus concluded that "flight attendants who worked outside the
home during pregnancy experienced a nearly two times estimated increased
relative risk of spontaneous abortion, compared with flight attendants
who did not work outside the home during pregnancy . . ." (See page
213 of study). In addition, flight attendants "who experienced a spontaneous
abortion during their first pregnancy during the study period reported
working significantly more flight hours per month during their pregnancy
(74 hours per month) than flight attendants who delivered a live birth
(64 hours per month) . . ." (Study, page 212).

Can an airline concerned
about the increased rate of spontaneous abortions discussed above lawfully
reduce the working hours or otherwise limit the employment opportunities
of pregnant flight attendants? Any such restriction or limitation would
appear to be a facially discriminatory policy violative of Title VII of
the Civil Rights Act of 1964. Title VII provides, in pertinent part, that
an employer shall not discriminate against employees on the basis of sex;
that prohibition includes the federal Pregnancy Discrimination Act's ("PDA")
ban on discrimination "because of or on the basis of pregnancy, childbirth,
or related medical conditions."

In International Union,
UAW v. Johnson Controls, Inc., 499 U.S. 187 (1991), the United States
Supreme Court held that Title VII, as amended by the PDA, forbids sex-specific
fetal protection policies. In that case, the employer's policy excluded
fertile women from certain jobs because the company was concerned that
the occupational exposure to lead used in the manufacture of batteries
entailed a risk of harm to a fetus carried by a female employee. Holding
that the policy explicitly discriminated against women on the basis of
their sex, the Supreme Court noted that the employer's policy would be
unlawful unless the employer could show that the policy was a "bona fide
occupational qualification [BFOQ] reasonably necessary to the normal operation
of the particular business or enterprise." In the Court's view, "permissible
distinctions based on sex must relate to ability to perform the duties
of the job," and "women as capable of doing their jobs as their male counterparts
may not be forced to choose between having a child and having a job." The
Court concluded that with the PDA "Congress made clear that the decision
to become pregnant or to work while being either pregnant or capable of
becoming pregnant was reserved for each individual woman to make for herself."
Accordingly, the employer's moral and ethical concerns about the possibility
of fetal harm caused by detrimental occupational exposure did not establish
a BFOQ. "Decisions about the welfare of future children must be left to
the parents who conceive, bear, support, and raise them rather than to
the employers who hire those parents. . . ."

In sum, federal antidiscrimination
law mandates that the question whether a pregnant employee should continue
to work where there is a risk of work-related spontaneous abortion is to
be answered by the employee and not the employer. Under the Johnson
Controls analysis, an employer cannot restrict the employment of pregnant
flight attendants who are capable of performing their job duties.